5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / /
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES/ /
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES/ /
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES/ /
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES/ /
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES/ /
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES/ /
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES/ /
|
Name of Reporting Person
|
Date of Transaction
|
Amount of Securities
|
CCI Onshore
|
09/29/2020
|
1,985,310
|
Gascon
|
09/29/2020
|
1,169,192
|
High Coast
|
09/29/2020
|
4,102,236
|
High Coast
|
10/01/2020
|
(202,758) (1)
|
Highcrest
|
09/29/2020
|
954,258
|
Thornwood
|
09/29/2020
|
317,508
|
(1)
|
Sale of Depositary Units by High Coast described in Item 4 above.
|
1.
|
Depositary Unit Purchase Agreement dated as of October 1, 2020, between High Coast Limited Partnership and Brett Icahn.
|
(a)
|
Existence;
Enforceability. The Seller is a limited partnership, duly organized, validly existing and in good standing pursuant to the laws of the State of Delaware. The Seller has authorized the execution, delivery and performance of this
Agreement, and each of the transactions contemplated hereby. Upon execution and delivery by the Buyer and the Seller, this Agreement shall constitute a valid and binding obligation of the Seller, enforceable against the Seller in accordance
with its terms.
|
(b)
|
No
Breach. The Seller is not subject to, or obligated under, any provision of (i) the Organizational Documents of the Seller, (ii) any contract, (iii) any license, franchise, or permit, or (iv) any Law that would be breached or
violated, or in respect of which a right of termination or acceleration or any security interest, lien, claim or other encumbrance or any restriction on transfer (collectively, “Encumbrances”), on any of its assets would be created, by its execution, delivery, and performance of this Agreement or the consummation of the transactions contemplated hereby. No authorization, consent, or
approval of, waiver or exemption by, or filing or registration with, any Governmental Entity or any other third party is necessary on the Seller’s part for the consummation of the transactions contemplated by this Agreement that has not
previously been obtained or made by it.
|
(c)
|
Title.
The Seller has good and marketable title to the Units. The Units are owned by the Seller free and clear of any Encumbrance and will be transferred to the Buyer free and clear of any Encumbrances, in each case other than those imposed by the
Securities Act of 1933, as amended (the “Securities Act”).
|
(d)
|
Investment
Representations and Warranties. The sale of the Units by the Seller is not part of a plan or scheme to evade the registration requirements of the Securities Act. Neither the Seller, nor any person acting on behalf of the Seller,
has offered or sold any of the Units by any form of general solicitation or general advertising.
|
(e)
|
MNPI.
The Seller is not in possession of any material non-public information with respect to the Units or the Company except to the extent such information is known to, or otherwise available to, the Buyer.
|
(a)
|
Existence;
Enforceability. The Buyer has authorized the execution, delivery and performance of this Agreement, and each of the transactions contemplated hereby. Upon execution and delivery by the Buyer and the Seller, this Agreement shall
constitute a valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms.
|
(b)
|
No
Breach. The Buyer is not subject to, or obligated under, any provision of (i) the Organizational Documents of the Buyer, (ii) any contract, (iii) any license, franchise, or permit, or (iv) any Law that would be breached or
violated, or in respect of which a right of termination or acceleration or any Encumbrance on any of its assets would be created, by its execution, delivery, and performance of this Agreement or the consummation of the transactions
contemplated hereby. No authorization, consent, or approval of, waiver or exemption by, or filing or registration with, any Governmental Entity or any other third party is necessary on the Buyer’s part for the consummation of the
transactions contemplated by this Agreement that has not previously been obtained by it.
|
(c)
|
Investment
Representations and Warranties.
|
(i)
|
The Buyer acknowledges that the sale of the Units contemplated by this Agreement will not be registered
under the Securities Act or any state securities Laws and that the Units are being sold pursuant to an exemption from such registration and qualification based in part upon its representations and warranties contained herein.
|
(ii)
|
The Buyer understands that no federal or state agency has passed upon the merits or risks of an
investment in the Units or made any finding or determination concerning the fairness or advisability of an investment in the Units.
|
(iii)
|
The Buyer is familiar with the business and operations of the Company and has been given the opportunity
to request and obtain from the Company all information that it deems necessary to enable it to make an informed investment decision concerning the acquisition of the Units.
|
(iv)
|
The Buyer has such knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment contemplated by this Agreement and is able to bear the economic risk of the investment in the Company (including a complete loss of value of such investment).
|
(v)
|
The Buyer is an “accredited investor” as such term is defined in Rule 501(a) promulgated under the
Securities Act.
|
(vi)
|
The Buyer is acquiring the Units solely for its own beneficial account, for investment purposes, and not
with a view to, or for resale in connection with, any distribution of the Units.
|
(vii)
|
The Buyer understands that the Units are “restricted securities” under applicable federal securities Laws
and that the Securities Act and the rules of the U.S. Securities and Exchange Commission provide in substance that the Buyer may dispose of the Units only pursuant to an effective registration statement under the Securities Act or an
exemption therefrom. The Buyer acknowledges that the certificates evidencing the Units or the Company’s records reflecting the Units will bear a legend reflecting the restrictions on transfer of such Units under the Securities Act.
|
(a)
|
Transfer.
The Buyer agrees that: (i) it will not sell, assign, pledge, give, transfer, or otherwise dispose of (“Transfer”) the Units or any interest therein,
or make any offer or attempt to Transfer the Units or any interest therein, except for any Transfer that is effected (1) following the termination of the Manager Agreement and (2) during an open window period in accordance with the Company’s insider trading policy and (3) pursuant to a
registration of the Units under the Securities Act and all applicable state securities Laws, or in a transaction which is exempt from the registration provisions of the Securities Act and all applicable state securities Laws; and (ii) the
Company and its affiliates shall not be required to give effect to any purported Transfer of such Units except upon compliance with the foregoing restrictions.
|
(b)
|
Governmental
Filings. The Buyer agrees that, if, as a result of its ownership of the Units, it is considered a member of a group with the Seller or its any of its affiliates (including the Company) for the purposes of any filing with a
Governmental Entity (including but not limited to filings required by Section 13 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”),
Section 16 of the Exchange Act or the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended), any such filing shall be prepared by, and made at the determination of, the Seller in its sole discretion; provided that the Seller shall permit
the Buyer to review and comment on each such filing prior to the filing date.
|
(c)
|
Assurances.
Each party shall, from time to time upon the other party’s reasonable request and without additional consideration, execute and deliver such additional documents and take all such further action as may be necessary or desirable to
consummate and make effective the transactions contemplated by this Agreement.
|
(a)
|
The Buyer agrees to indemnify and hold harmless the Seller, each person, if any, who controls the Seller
within the meaning of Section 15 of the Securities Act, and each of their respective managers, directors, officers, employees, agents, and representatives to the fullest extent permitted by applicable Law from and against any and all
losses, liabilities, claims, damages, judgments, amounts paid in settlement, and expenses (collectively, including, without limitation, reasonable attorneys’ fees and disbursements, “Losses”) arising out of, or resulting from, any inaccuracy in, or breach of, the representations, warranties, or covenant made by the Buyer in this Agreement.
|
(b)
|
The Seller agrees to indemnify and hold harmless the Buyer, each person, if any, who controls the Buyer
within the meaning of Section 15 of the Securities Act, and each of their respective managers, directors, officers, employees, agents, and representatives to the fullest extent permitted by applicable Law from and against any and all Losses
arising out of, or resulting from, any inaccuracy in, or breach of, the representations, warranties, or covenant made by the Seller in this Agreement.
|
BRETT ICAHN
|